date

7 Apr 1808 Letter V Ch.3.
7 Apr 1808

Letter V

Ch.3. [...?]

10. A power which the learned scribe has not given to his /those/ learned brethren, and which notwithstanding the [...?] of sympathy for them I should not have /he could not naturally/ be expected to see him give /to him given/ to them, is what on which I, who am not /has not the honour to be/ a partaker in any such sympathy, should notwithstanding be desirous of seeing vested in their hands. Suppose a set of regulations established by Parliament: established in the first instance, or at the suggestion of the proposed Commissioners. In the judgment of the Court of Session, suppose in my instance their regulations about to be production /pregnant/, or actually production of a specific inconvenience, not foreseen by Parliament: In such case I would give to the Court appropriate powers for making representation, or even with the pleasure of Parliament could be taken, suspending execution, according to the nature of the case: making representations supposing the formation of these /such/ apprehensions antecedent on them, suspending exexution, if [...?] in [...?] to any suit at law whereby the execution of the reputation in question even demanded[?]: requiring however at the same time in the case of suits suspension report to be forthwith made to Parliament, stating the case in which the suspension was made, the inconvenience or supposed or inconvenient inconvenience constituting / which operated as/ the grounds and reasons of it, together with their persuasion that the inconvenience were such as had been foreseen by Parliament: and that for /but for/ want of such suspension, damage of irreparable nature /in its nature irreparable or in its greater in quantity more considerable/ (particularising it) would in this question be produced: Putting the course /[...?]/ which for the prevention of such damage they had seen reason to make subject to the pleasure of Parliament: and to give to the Court the benefit of the [...?] [...?] of the scale, and viz [...?] of Parliament, such [...?] should in default of notice taken by Parliament within a certain time, be absolute.
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  • Title: [18 Feb y 1808 on L d Eldons Bill]
    Description: 18 Feb y 1808

    on L d Eldons Bill

    Letter V

    II. Eldons & J.B.'s course

    in a state fit to receive the touch of the legislators sceptre

    As to extent, the powers /field/ of subordinate legislation would hardly have gone /stretched/ beyond that of the regulations proposed to receive an immediate sanction from the authority of Parliament: and accordingly in respect of their object and their nature those powers would have been confined to the giving by means of regulations of detail, effect and execution to such general principles and rules as could not at this distance from the scene of action be put into a shape compleatly fitted for practice without the aid of such regulations of an expository nature as the judicial authority would alone be competent to frame /to the framing of/ in terminis: not seeing any sufficient reason why, out of /beyond/ that line, the initiative authority should swell into definitive power in the instance of these judicial hands, any more than in the instance of those of a set of Commissioners selected for the exercise of an authority directed expressly to the purpose of legislation.

    Under the same or a separate head would have come in the last place, such powers, if any, as ex majors[?] cantata[?], it might have appeared advisable to invest them with, for suspending the execution of this or that one of the number /set/ of regulations proposed to be established instanter by the immediate authority of Parliament.

    The need and demand for these powers would of course depend on the subject matter and nature of such proposed Parliamentary regulations.

    But any rate the object they would be directed to and confined to /limited by/ - would be the prevention of irreparable damage: meaning such irreparable damage, if any, as might result from the execution of the regulations so established by the immediate authority of Parliament.
  • Title: [18 Feb. 1808 on L d Eldons Bill]
    Description: 18 Feb. 1808

    on L d Eldons Bill

    Note ?

    Letter V

    II. Eldon's & J. B.'s course

    Note ( ) or omitt?

    In regard to irreparable damage, the truth is - that an authority for /adequate to/ the prevention of it, though it were by a suspension put pro hâc vice view to the execution of the law even of the statute law, is an authority that I would never wish to see any judicatory, or at any rate any judicatory of so high a class, unprovided with: always understood that on their responsibility, and as a condition to their justification, the damage done /produced/ by the suspension shall not be greater than the damage that would have taken place for want of it.

    Howsoever it may be in regard to regulations already established, in regard to any new ones taking any such extensive scope as that here proposed, the propriety of such a provision does not seem much exposed to dispute.

    Without any public reason /Without authority from the legislature/ and without a thought directed to any other than their own private ends, Judges especially under the fee-gathering system, have ever been ready enough to take every imaginable liberty with the wish of the legislator: but when without any prejudice to those private interests, a rigid adherence to the letter, with or without any regard to the spirit of the laws has been attended with no other inconvenience than the production of some irreparable damage which the exercise of a discretion directed to the ends of justice might have prevented, then it is that judicial obedience puts on /cloaths itself/ all its rigour. and the afflicted individual finds the official ear shut against all complaints.
  • Title: [6 Apr. 1808 Letter V Ch.3.]
    Description: 6 Apr. 1808

    Letter V

    Ch.3. [...?]

    5. In the same view (as for conjecture) instead of executions being stopped of course by the Appeal, as at present the learned scribe ('. 14) gives power to the Court appealed from or to replenish "all matters relative to interim possession or execution, and payment of cash and expences already incurred." In my view of the matter the propriety of such a power is out of dispute. But being a boon and an example in [?] calling as much for such /whatsoever/ limitations may without prejudice to the beneficial part of its efficacy be found applicable to it, the course taken by the learned scribe, as it should seem for that purpose, is in speaking of the discretion of the learned Judges in question, to [...?] that it shall be sound, and in speaking of their regar for the interest of the parties that it shall be just.

    In my view of the matter, in the character of a guide to the discretion in question and thus in that of a check, a phrase composed of four other words viz. prevention of irreparable damage, promises rather better /seems to promise/ in point of efficacy. Let it be your [...?] so to order matters that matter in case of your judgments being revised or modified, any damage of an irreparable matter shall to the [...?] of the sort of absolute or conditional execution that you give to it, nor in case of your judgments being affirmed, of the limits /limitations/ which you may think fit to apply, or the condition you may think fit to [...?] to such execution of any as in this case you may think fit to give to it. The ulterior development of this idea will afford matter for another head.